In its second decision related to the Port of Vancouver’s lease of property for a new rail terminal facility to export petroleum products, 1 the Washington Supreme Court held that the Port appears to have violated the state’s Open Public Meetings Act, ch. 42.30 RCW (OPMA), in its discussion of the lease during five executive sessions held in 2013.

The case centers on RCW 42.30.110(1)(c), which permits public agencies to meet in executive session to “consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price.” After considering the plain language of the statute, its legislative history, and the practical impacts of a narrow interpretation, the Court unanimously adopted a narrow reading of the statute:

Continue Reading Washington Supreme Court Holds That Executive Sessions On Real Estate Sales And Leases Must Be Focused On Minimum Price

By Jake Thomas from The Columbian

A Superior Court judge ruled Friday that Clark County violated the state’s public records act and must pay $15,750 in penalties for mishandling a dispute with former Councilor David Madore over the release of messages from his private cellphone.

The ruling from Judge Daniel Stahnke stems from a lawsuit filed last year by Community Planning Director Oliver Orjiako that alleged that the county didn’t adequately respond to his public records request for texts from Madore’s cellphone related to county business.

The lawsuit, which was related to harassment and whistleblower complaints Orjiako filed against Madore, cited Nissen v. Pierce County, a 2015 state Supreme Court decision that determined that communications generated on elected officials’ personal devices are public records if they pertain to public business.

Continue Reading What Happens When A County Elected Official Does Not Produce Records? Washington State Court Finds County Liable For Official’s Actions

On May 16, 2017, Washington Governor Jay Inslee signed two public records bills passed by the legislature in April, Engrossed Substitute House Bill 1594 and Engrossed House Bill 1595.

EHB 1595 addresses the costs associated with responding to requests made under the Washington Public Records Act, Chapter 42.56 RCW (“PRA”).

First, the bill permits agencies to charge for the cost of producing electronic documents, including costs of transmitting electronic records, the physical media device provided to the requester, and the costs of electronic file transfer or cloud-based data storage. Agencies may calculate their own actual costs, or charge default amounts set by the bill if making those calculations would be unduly burdensome. The bill’s default amounts are ten cents per page for scanning records; five cents for every four files delivered to the requester electronically; ten cents per gigabyte for electronically transmitted records; or a flat fee of up to two dollars as long as the agency reasonably estimates the cost will equal or exceed that amount.

Continue Reading Governor Signs Two Bills Amending Washington’s Public Records Act

A Washington Court of Appeals held that the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW (PECBA), is not an “other statute” exempting records from disclosure under the Public Records Act, chapter 42.56 RCW (PRA), because the PECBA does not “expressly prohibit or exempt the release of specific records or information.” SEIU 775 v. Freedom Found., No. 48881-7-II (Apr. 25, 2017). This case represents the latest in a string of PRA disputes between local chapters of SEIU and the Freedom Foundation. In two opinions issued in 2016 (see here and here), the court addressed two separate disputes over the “commercial purposes” exemption of the PRA, RCW 42.56.070(9). SEIU is the union representing the individual workers who deliver personal care services to functionally disabled persons.

This latest lawsuit arose out of the Freedom Foundation’s request for Department of Social and Health Services (DSHS) records regarding the times and locations of trainings and meetings for the workers. The meetings were held at state facilities and not open to the public; and, DSHS provided time for SEIU to meet with the workers at these meetings. After receiving notice of the Freedom Foundation’s request from DSHS, SEIU sought to enjoin release of the records, concerned that the Freedom Foundation intended to show up at these meetings to discourage the workers from participating in the union.

Continue Reading Washington Court Holds Public Employees’ Collective Bargaining Act Does Not Exempt Information from Public Disclosure

The Application of Open Records Laws to Publicly Funded Science” by Lauren Kurtz, Natural Resources & Environment, American Bar Association Section of Environmental, Energy, and Resources, Spring 2017

The referenced article discusses the potential exemption from public disclosure of scientific research. Included is discussion of the well-known Washington Supreme Court decision in Progressive Animal Welfare Society v. University of Washington, 125 Wn.2d 243 (1994) (addressing internal, peer-review correspondence). See also, Servais v. Port of Bellingham, 127 Wn.2d 820 (1995) (explaining application of “research data” exemption in Washington’s Public Records Act).

Everett Fighting Inmate’s Request For Bikini Barista Videos

By The Associated Press from Tri-City Herald [Washington]

The city of Everett is suing to block a prison inmate’s request for copies of surveillance videos of bikini baristas.

The Daily Herald reports the city filed a lawsuit in Snohomish County Superior Court last week seeking to prevent Jamie Wallin from obtaining videos under the state’s public records act.

In court filings, Everett attorneys say the court shouldn’t “feed this repeat sex offender’s perversions” by giving him videos featuring young women stripping and engaging in sexual conduct.

Continue Reading Will Bikini Barista Videos Be Bared Under Public Records Act?

By John Gillie from The News Tribune

A three-year fight over public access to government-related emails stored in a former Puyallup city councilman’s private email account might be appealed to the U.S. Supreme Court.

Puyallup City Manager Kevin Yamamoto told the Puyallup City Council late Tuesday that the case, which the city has lost in two separate forums, involves a major constitutional question and should be resolved by the nation’s highest court.

Arthur West, an Olympia open-government advocate and plaintiff in the case, told the council that he too wants to see the city appeal the state courts’ decision.

“I think you guys should go to the Supreme Court, not because you have any chance — you have like a 2 percent chance of getting review accepted. The longer you delay this and the more unreasonably you fight, the worse it’s going to be for you,” he said.

Continue Reading Both Sides in Puyallup Email Records Case Want to Take Fight to U.S. Supreme Court

In a recent opinion, the Washington Attorney General concluded that governing bodies of public agencies may conduct their meetings exclusively by telephone conference call, so long as the call is open to the public under Washington’s Open Public Meetings Act, ch. 42.30 RCW (OPMA). AGO 2017 No. 4.

To comply with the OPMA, the Opinion suggests: “one or more specific locations can be designated as the meeting place; notification of the meeting place(s) and time can be provided in the manner outlined in RCW 42.30.075; the agenda can be posted online if required by RCW 42.30.077; and a speaker phone can be provided at the designated meeting place(s) to enable those attending to hear the public discussions and to provide testimony.” While other states (such as California and New York) specify standards for “remote” communication meetings, Washington does not. But according to the Attorney General, the absence of express standards is not controlling.

The AGO concludes by noting “a member of the public could conceivably bring legal action” under the OPMA, but that a successful challenge would be “unlikely.” AGO 2017 No. 4 cited to an earlier opinion (AGO 2014 No. 7), as well as judicial decisions from Maryland and Michigan in support of its position.

Arthur West filed suit under Washington’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Pierce County Council and individual Council members based on a series of e-mails between members of the Council and the Pierce County Prosecuting Attorney’s Office. In West v. Pierce County Council, No. 48182-1-II (February 22, 2017), Division II of the Washington Court of Appeals reversed the superior court and held that West had standing to pursue his claims.

RCW 42.30.120 and .130 permit “any person” to bring a lawsuit for sanctions or an injunction based on a violation of the OPMA. Adopting the analysis of Division I of the Court of Appeals in last year’s West v. Seattle Port Commission, 194 Wn. App. 821, 380 P.3d 82 (2016), Division II held that West qualified as “any person” under the plain language of the OPMA. It also determined that this interpretation of the OPMA’s standing requirements did not conflict with the Washington Supreme Court’s decision in Kirk v. Pierce County Fire Protection District No. 21, 95 Wn.2d 769, 630 P.3d 930 (1981).

Although the court held that West had standing to sue, it affirmed dismissal of his OPMA claim on the merits. In an unpublished portion of the opinion, the appellate court agreed with the superior court’s conclusion that no OPMA violation had occurred through the series of e-mail communications, as there was no evidence that the Council members collectively intended to engage in a meeting to transact official agency business.

The laws about public records differ from one government to the next and are further complicated by some technologies, like police body cameras.

By Liz Farmer from Governing.com

In 2015, the editor of a newspaper in Florida filed a public records request with the Broward County Sheriff’s Office asking for the email of every employee during a five-month period to be searched for specific gay slurs.

In response, the South Florida Gay News received a $339,000 bill.

The office said fulfilling the request would take four years and require hiring a dedicated staffer. The exorbitant charge set off a year-long legal battle that attracted the Associated Press and its lofty resources. To show how arbitrary the number was, the AP and South Florida Gay News filed a similar request to the sheriff’s office in other Florida counties. They were quoted fees ranging from as little as $37 to more than $44,000.

Continue Reading From $37 to $339,000: Why the Price of Public Records Requests Varies So Much